Why we must fight biopiracy

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Martin Khor argues that a major effort is needed to prevent intellectual property rules from undermining the indigenous knowledge that is essential for sustainable development.

Martin Khor is director of the Third World Network — a non-profit international network that researches, publishes on, and organises events about issues relating to development — which is based in Malaysia.

Indigenous knowledge (IK) is now widely recognised as vital for ecological and social sustainability. Yet too often, the rights of the holders and practitioners of such knowledge are not respected by those seeking to make use of it. Indeed, these rights are being eroded, in particular by the invasion of the modern intellectual property system into the domain of IK. Action is urgently needed to reverse this process.

The economic contribution of IK to our ability to make sustainable use of biological resources is enormous. According to one estimate, for example, the germplasm from developing countries being used in the global pharmaceutical industry was worth at least US$32 billion a year in the early 1990s. Yet developing countries receive only a minute fraction of this for the raw materials and knowledge that they contribute to the growth of some of the world’s largest industries.

Equally outrageous is the fact that companies and institutions from developed countries are using intellectual property rights (IPRs) to misappropriate the IK of local communities.

The patenting of life forms, for example, has increased tremendously since the establishment of the Trade Related Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO) in 1995. TRIPS makes it mandatory for WTO member states to allow patenting of at least some life forms (i.e. microorganisms) and some living processes (i.e. microbiological processes). It also requires the protection of plant varieties, either through patents, or through an “effective sui generis system” — a reference to an independently created system developed by a government.

This part of TRIPS has been a major mistake. It has opened the floodgates to the patenting of biological resources, and of IK about the use of these resources. In broad terms, biopiracy removes the rights of communities (mostly in developing countries) and instead supports the rights of private institutions (mostly in developed countries) that are granted patents.

These IPR holders are able to make monopoly profits by commercialising the patented products and the IK associated with them. In contrast, the local communities that developed or made use of the knowledge in the first place — and should therefore be considered as the rightful owners — usually get no benefit.

An even more ironic situation arises if the patented process or product leads to the sale of products at high prices in those very developing countries from which they originated. Indeed, this form of biopiracy creates a form of “reverse technology transfer”, as it is the poor developing countries that transfer knowledge and technology to the rich developed world.

But the developing countries involved get scant reward for their contributions; and indeed may eventually have to pay institutions in the rich countries a high price (itself sustained by monopolistic IPRs) for the use of the product or process, potentially creating a large drain on developing countries’ foreign exchange, and adding to their foreign debt.

Another problem is the way in which the patenting of biological resources restricts or prevents other producers from using processes and products related to traditional knowledge. For example, a corporation that has successfully applied for a patent on the use of a plant for certain functions could try to prevent others from using it in the same way. As a result, those who have been using traditional knowledge for many generations could face restrictions on doing so in the future.

Typical examples include a US patent on the use of turmeric for healing wounds (although this was successfully challenged by the Indian government), a Japanese patent on the anti-diabetic properties of banana (traditionally used as herbal medicine in the Philippines), and the US patenting of a protein from a native strain of Thai bitter gourd (after Thai scientists found its compounds could be used against HIV infection). Such practices are rapidly eroding the world’s store of traditional knowledge and, in doing so, are undermining the conservation and sustainable use of biodiversity.

The patent system should not be used to reward research into biological resources and processes, as living organisms are qualitatively different from non-living materials, and knowledge relating to biological processes and materials cannot therefore qualify as an “invention”, as required in patent legislation.

What, therefore, can be done to counter the misappropriation of IK by powerful corporations and institutions?

Firstly, a revision is needed of IPR laws and regulations covering living organisms, biological resources and the knowledge of their use. Article 27.3b of the TRIPS agreement, which deals with IPR and biological resources, is currently under review. Many developing countries, including those in the Africa Group, have proposed that this section specifies that living organisms and biological or living processes cannot be patented. Unfortunately developed countries, including the United States and the European Union, are opposed to this proposal.

Until such a change is adopted, countries should take damage-limiting measures, for example by excluding plants, animals and naturally occurring microorganisms from patentability. They should choose a sui generis system of plant variety protection that endorses the role and value of traditional knowledge, as well as the rights over this knowledge of farmers, of indigenous people and of local communities. Such a system could enable the country involved to protect plant varieties in a way that also protects the knowledge and innovations of local communities.

Several developing countries are also proposing that a measure be introduced into the WTO requiring the prior approval of countries of origin before patent applications involving a biological resource, or traditional knowledge about its use, are granted. This would enable countries of origin either to prevent such patent applications, or to require benefit-sharing arrangements with the applicants. Developed countries should support — not block — this proposal.

As part of the implementation of the Convention on Biological Diversity, developing countries should also establish national arrangements for collecting and using biological resources and the knowledge associated with them, as well as for sharing the benefits from any commercial transactions with those communities which have developed this knowledge.

Unfortunately current efforts by individual countries to review their national laws on intellectual property, in order to bring them in line with their obligations under the TRIPS agreement, is likely to accelerate the biopiracy phenomenon. For this process now requires countries that previously forbade the patenting of life to allow patents on certain types of organisms and living processes.

With careful and intelligent legal and policy choices, developing countries can avoid some of the worst dangers that can arise from the implementation of their obligations under TRIPS. In the long run, however, a fundamental revision of multilateral trade rules is essential if the injustice inflicted by biopiracy on local communities and their indigenous knowledge is to be corrected.

Related external link:

Third World Network website

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